This Article examines the normative significance of paternalism. That an action, a law, or a policy is paternalistic generally counts against it. This Article considers three reasons why this might be so—that is, three theories about what gives paternalism its normative character.

This Article’s claim is that the two most common explanations for paternalism’s negative character are mistaken. The first view, which underlies the recent work by Professors Thaler and Sunstein, maintains that paternalism is negatively charged because it involves coercive interference with people’s choices. This approach proves inadequate, however, because more coercive actions can be a less objectionable form of paternalism, and vice versa. Paternalism’s impermissibility varies independently from its coerciveness. The second common theory of paternalism focuses on the distinctive intention behind paternalistic interference. But this approach is ill suited to explain the normative significance of paternalism because permissibility is not generally dependent on intention.

This Article sketches a third conception of paternalism—one that locates its normative significance in neither coercion nor motive. This approach maintains that paternalism involves expressive content. Paternalism expresses the idea that the actor knows better than the person acted upon; it implies that the other party is not capable of making good judgments for herself. The normative significance of paternalism derives from the typical impermissibility of making such an expression. That is, paternalism is wrong in the same way that an insult is wrong. This understanding of paternalism’s normative significance provides the tools to make the charge of paternalism leveled against some policies intelligible, and conversely to explain why other paternalistic policies are permissible.

* Assistant Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania. I am grateful for discussions, comments, and criticism from Anne Alstott, Emily Dupraz, Carl Fox, Kalle Grill, Frances Kamm, Michael Kessler, Micha Glaeser, Jeff Johnson, T.M. Scanlon, Cass Sunstein, and Alan Strudler, and audience members at the Harvard Moral and Political Philosophy Workshop and the 2013 MANCEPT Workshops in Political Theory.

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented federal legislative power to prevail in domestic wars. The “Sweeping Clause” grants Congress far-reaching authority to carry federal powers—legislative, executive, and judicial—into execution. Using this authority, Congress may suspend the ordinary forms of government and some civil liberties as a means of implementing federal powers. For example, Congress may suspend the privilege of the writ of habeas corpus or authorize military trial of civilians if it supposes that such measures will help ensure that federal authority extends throughout the United States. Hence Congress has something of a domestic wartime power that permits it to enact laws meant to defeat rebels and invaders and thereby ensure the continuity of the Constitution and the federal and state governments that sustain it.

* James Monroe Distinguished Professor of Law & Horace W. Goldsmith Research Professor, University of Virginia Law School. Thanks to participants in the Berkeley Law Public Law Workshop, the Northwestern University School of Law Constitutional Colloquium, the University of San Diego School of Law Faculty Workshop, and the University of Virginia Law School Faculty Workshop. Thanks also to Will Baude, John Harrison, Tonja Jacobi, Kurt Johnson, Eugene Kontorovich, John McGinnis, Caleb Nelson, Eric Posner, Michael Rappaport, Mike Ramsey, Hannah Swanson, Amanda Tyler, Adrian Vermeule, Steven Walt, and John Yoo. Thanks to the reference librarians at the University of Virginia for excellent research assistance and to the Virginia Law School for summer research support. Thanks to Ryan Baasch and Rachel Kincaid for research assistance.

The federal Individuals with Disabilities Education Act promotes the education of students with disabilities together with their nondisabled peers, requiring education in the “least restrictive environment” (“LRE”). This requirement has long been subject to competing interpretations. This Note contends that the dominant interpretation—requiring education in the least restrictive environment available—is deficient and allows students to be placed in unnecessarily restrictive settings. Drawing from child mental health law, this Note proposes an alternative LRE approach that requires education in the least restrictive environment needed and argues that this alternative approach is a better reading of the law.

* J.D. Candidate, May 2016, University of Michigan Law School. M.S.W. Candidate, May 2016, University of Michigan School of Social Work. I would like to thank my parents and Professor Samuel Bagenstos for their invaluable advice and support.

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language of section 6.502(G)(2) and the Michigan Supreme Court’s opinion in People v. Cress, Michigan courts have started conflating the four-prong Cress legal standard with section 6.502(G)(2)’s “new evidence” exception to the ban on successive motions. This conflation imposes an additional discoverability element on the “new evidence” exception: a court will dismiss a petitioner’s motion as successive if the petitioner could have discovered the evidence underlying the motion through the exercise of reasonable diligence. This Note demonstrates that the conflation of section 6.502(G)(2) and the Cress standard, and the resulting imposition of an additional discoverability requirement on the “new evidence” exception, is plainly wrong. It contradicts the text and structure of the Michigan Court Rules and imposes unintended adverse consequences on criminal defendants seeking to vindicate their constitutional rights.

* J.D. Candidate, May 2015, University of Michigan Law School. I would like to thank Imran Syed for inspiring me to tackle this issue and for sharing his 6.500 expertise. I am eternally grateful to Adam Beagle for always supporting me and for putting up with the number of times I have said the word “6.500.” I am thankful to Matt McCurdy and Eve Brensike Primus for helping me improve this piece. This Note is dedicated to all of my past and present clients for their continual inspiration.

Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over bills whose enactment arguably triggers international law violations, members of Congress urge international law compliance relatively often, using rhetorical framing devices similar to those that members use for comparable constitutionally problematic bills. The arguments are overwhelmingly supportive of international law and often phrased in legalistic terms. The evidence suggests, moreover, that such international law invocation may be partially motivated by political self-interest. These findings, together with existing literature and qualitative evidence from former policymakers, imply that members of Congress may be incentivized to take public pro-international law positions by international law-minded executive officials. In this way, the executive may use the legislature to reinforce the national commitment to international law obligations. Through this interbranch bargaining, the president might use congressional international law discourse to boost the country’s international credibility and strengthen her office’s own hand in making and enforcing future commitments.

* Michigan Grotius Research Scholar, University of Michigan Law School; Faculty Lecturer, University of Virginia School of Law; Ph.D., Political Science, expected 2019, University of Michigan. I thank Kristina Daugirdas, Michael Gilbert, Andrew Hayashi, David Martin, David Sloss, and Mila Versteeg for valuable comments on earlier drafts. The Article also benefited from suggestions by Curtis Bradley, John Coyle, Harold Koh, Mathew McCubbins, Saikrishna Prakash, Naomi Schoenbaum, Ryan Scoville, Paul Stephan, David Stewart, and Carlos Vázquez. I received valuable feedback from workshop participants at University of Virginia School of Law in August 2013, Northwestern University School of Law in October 2013, Washington and Lee University School of Law in October 2013, the annual ASIL International Law in Domestic Courts interest group meeting at Yale Law School in December 2013, Georgetown University Law Center in August 2014, the ASIL Midyear Meeting in November 2014, and University of Michigan Law School in March 2015. I also thank my excellent team of research assistants, including Christopher Cooke, Yisha Ding, Céline Janssenswillen, Jasmine Johnson, John Lynch, Heather Moore, Roshanak Mirhosseini, Roger Polack, Ryan Schiedermayer, Bette Shifman, Caitlin Valiulis, Masjo Ward, Emily Wong, and Wenning Xu, for assistance with data collection.

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This Article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact-finding. We show that reintroducing fundamental principles of fact-finding can provide a simpler and more accurate method of complex valuation. Our conclusion rests on the premise that valuations are nothing more than exercises in routine fact-finding. Valuation is not an ethereal question with no right answer. Rather, valuation is a process of inferring the value that a relevant community places on an asset. This basic point has been ignored in practice and received almost no attention in the academy. Recognizing this foundational point can both restore the legitimacy of the process and reduce the costs of uncertainty and biased testimony. We demonstrate that a return to traditional evidentiary rules, including attention to burdens of proof, will discourage courts from resorting to ad hoc calculations and will encourage courts to arrive at valuations through vetted methodologies that are shown to be reasonably accurate and, most importantly, supported by the record. We further show that this will lead to an improvement in the quality of information provided by expert witnesses.

* Assistant Professor of Law, The University of Chicago Law School.

** Associate Professor of Law, The University of Connecticut School of Law. We thank Mathilde Cohen, Florian Ederer, James Kwak, Alexandra Lahav, Saul Levmore, Jennifer Mnookin, Anthony Niblett, Peter Siegelman, James Stark and workshop participants at Albany Law School for helpful comments and discussion. Sarah Nudelman and Thomas Malinowsky provided excellent research assistance. The Jerome F. Kutak Faculty Fund provided research support.

]]>http://michiganlawreview.org/a-simple-theory-of-complex-valuation/feed/0The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequenceshttp://michiganlawreview.org/the-demise-of-habeas-corpus/
http://michiganlawreview.org/the-demise-of-habeas-corpus/#commentsSat, 30 May 2015 00:03:57 +0000http://michiganlawreview.org/?p=1477Stephen R. Reinhardt*

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights.

In this age of calls for the near-total abolition of habeas and scathing rebukes of judges who fail to toe the not-so-hidden party line, it is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act (AEDPA). One can then proclaim that there is no reasonable alternative to the Supreme Court’s present construction of that statute, even though any participant in our habeas regime would have to agree that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession—even with the Chief Justice calling balls and strikes.

* Circuit Judge, United States Court of Appeals for the Ninth Circuit. I would like to thank my law clerk, Jeremy Kreisberg, 2014–15, for his invaluable assistance. The views expressed are mine alone; they do not represent the views of the United States Court of Appeals for the Ninth Circuit.

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a defendant’s possession of a state-issued medical marijuana license, (2) evidence that a state has legalized possession of marijuana for recreational purposes, and (3) evidence that a defendant suffers from a disease that marijuana arguably treats. Part I examines each of these three categories of personal use evidence and contends that district courts are likely to confront disputes over such evidence with increasing frequency. Part II analyzes objections to the admissibility of personal use evidence on direct examination, focusing primarily on Rules 402 and 403. Part III responds to those objections and argues that the evidence is probative of intent to distribute in federal marijuana-trafficking prosecutions.

* J.D., May 2014, University of Michigan Law School. I would like to thank Samuel Gross of Michigan Law School; Dennis Terez and Melissa Salinas of the Federal Public Defender’s Office for the Northern District of Ohio; Stephanie Goldfarb and Bibeane Metsch-Garcia of Michigan Law School’s Federal Appellate Litigation Clinic; and the Michigan Law Review Notes Office for its guidance and support.

]]>http://michiganlawreview.org/proving-personal-use/feed/0Eliminating Financiers from the Equation: A Call for Court-Mandated Fee Shifting in Divorceshttp://michiganlawreview.org/eliminating-financiers-from-the-equation/
http://michiganlawreview.org/eliminating-financiers-from-the-equation/#commentsSat, 30 May 2015 00:01:14 +0000http://michiganlawreview.org/?p=1481Bibeane Metsch-Garcia*

Divorce can be prohibitively costly. Many struggle or simply cannot afford to pay divorce attorneys’ fees, and the economic effects of divorce on women are particularly acute. In the past few years, financing firms have emerged to fund nonmonied spouses, mostly women, who cannot afford to litigate divorces from their wealthy spouses. The services provided come with a hefty price tag: firms take large fees, and their involvement may lead to unethical and potentially damaging practices. This Note explains what third-party divorce finance firms are and why the use of firms is problematic, and offers an alternative, more equitable method of financing nonmonied spouses’ divorce fees. Courts, not financing firms, should address any disparities in ability to pay between spouses. Mandatory fee shifting by courts would obviate the need for these financing firms that improperly profit from divorce and whose services come with many unwelcome strings attached.

* J.D. Candidate, May 2015, University of Michigan Law School. I would like to thank Joseph Aviv for his invaluable comments and support, Samuel Leifer, the Michigan Law Review Notes Office, the rest of the Michigan Law Review staff, Matthew Evans, and Stephanie Goldfarb. Thank you also to my mother, father, and brother.